EXPORT CONTROL REGULATIONS PART I General Overview PART

EXPORT CONTROL REGULATIONS PART I: General Overview PART II: Working with Controlled Equipment and Technology PART III: Trade Sanctions and Restrictions Harvard University Office of the Vice Provost for Research

PART I: GENERAL OVERVIEW § What are Export Controls? Ø Laws that regulate the distribution of technology, services and information to foreign nationals and foreign nations. § What is the purpose of Export Controls? Ø To restrict the flow of goods that could enhance military potential and/or economic superiority of adversaries Ø Prevent proliferation of weapons of mass destruction Ø Prevent terrorism Ø Advance foreign policy goals Ø Fulfill international obligations 2

THE LAWS/REGULATIONS Federal Agency Administering Export Controls: U. S. Department of Commerce U. S. State Department U. S. Treasury Department Law/Office: Export Administration Regulations (EAR) International Traffic in Arms Regulations (ITAR) Office of Foreign Assets Control (OFAC) Regulations Coverage: “Dual use” technologies - technologies and technical information with both commercial and military applications (e. g. , satellites, computers, software) Military Prohibits transactions of items/technologies (e. g. , value with countries or explosives, rocket systems, individuals military training equipment) 3

THE LAWS/REGULATIONS Federal Agency Administering Export Controls Examples of University Activities Affected U. S. Department of U. S. State Department Commerce U. S. Treasury Department “Dual-use” Military items/Military Use Transactions with foreign nationals Performing impact testing on military body armor. Foreign students participating in research involving a controlled technology. Accepting Defense Federal Acquisition Regulation (“DFAR”) clauses that prohibit foreign national participation or publication of research. Showing a foreign national student how to operate a high-energy laser. Providing services to foreign nationals, such as training in the use of controlled equipment. Sending controlled equipment to foreign countries. Sending controlled equipment to foreign countries. Working remotely from an embargoed country. Engaging the services of a foreign person from a sanctioned country for research or University activities. Receipt of payment from, or making payments to, a sanctioned foreign person. Enrolling a barred foreign national in an on-line education course. 4

EXPORT AND “DEEMED” EXPORT What is an Export? § Any oral or written disclosure (via email, phone, tours, etc. ) of technology, software/code or equipment to a foreign person. What is a Deemed Export? § A transfer of controlled goods/technology to a foreign person within the U. S. § May be triggered by the following activities: § Participation of foreign nationals in research activities § Laboratory tours § Face-to-face discussions/demonstrations § Sharing of computer files 5

WHAT IS MEANT BY A “FOREIGN PERSON”? § Foreign Government § Foreign Corporation § Anyone who is NOT a: § U. S. citizen § U. S. lawful permanent resident (“a green card holder”) § Person granted asylum § Person granted refugee status 6

HOW DO EXPORT CONTROLS IMPACT RESEARCH AT HARVARD? Research in the following areas frequently involve export controls: § Engineering § Space sciences § Computer sciences § Biomedical research (especially with lasers) § Research with encrypted software § Research with controlled chemicals, select biological agents, or toxins § Research involving the physical export of controlled goods or technology 7

HOW DO EXPORT CONTROLS IMPACT RESEARCH AT HARVARD? These activities may require a prior license from Commerce, State or OFAC : § § § Shipping research equipment abroad (almost always). Participation of foreign national faculty, students or staff in restricted research. Sharing technical information about controlled items, even in the U. S. (“deemed export ”). Emailing export controlled technology or information outside the U. S. Uploading “strong” encryption open source software code on a website. Bringing a laptop to Iran, Sudan or Syria (unless a license exception applies). Speaking at a conference in another country and discussing layouts you received from a vendor for controlled semiconductors which are not in the public domain. Attending a conference in Iran and bringing a laptop which contains lab operating manual for a controlled instrument. Transfer of funds through banks on restricted lists. Presentations/discussions of unpublished research at conferences/meetings where foreign national scholars may be in attendance. Visits to your lab by foreign scholars. 8

PROPOSAL STAGE RED FLAGS Does the Project involve: § § Shipping equipment to a foreign country? Collaborating with foreign colleagues? Training foreign nationals in using equipment? Working with a country subject to a US boycott? Is the RFP marked “Export Controlled”? Is the sponsor demanding pre-approval rights over publications or the participation of foreign national students? 9

EXCLUSIONS TO EXPORT CONTROL LAWS General Rule: Harvard, its faculty and employees may not export to foreign persons certain equipment and information without a license from the U. S. Government, unless an exclusion applies. Fortunately, the majority of research at Harvard is considered “fundamental research”, and covered under this exclusion to the Export Control Laws. The fundamental research exclusion: § Allows a University to include foreign nationals in research without a license. § Allows for the transfer of research information abroad without restriction once the information is in the public domain. 10

FUNDAMENTAL RESEARCH EXCLUSION (“FRE”) Applies to information: § Resulting from or arising during basic or applied research in science or engineering; § Conducted at an accredited institution of higher education/learning in the U. S. ; § Ordinarily published and shared broadly in the scientific community; and, § Not subject to proprietary or U. S. government publication or access dissemination controls. 11

LIMITATIONS OF THE FRE § The Fundamental Research Exclusion does not apply - § To transmission of items or materials; § To some technologies (e. g. , advanced encryption); § When there is a contract clause that forbids the participation of foreign nationals in the research effort; or, § When the scope of the project constitutes development. § If there any publication restrictions, either verbally or in writing, other than limited pre-publication reviews to: § Prevent inadvertent divulging of proprietary information provided to the researcher by the sponsor, and/or, § To ensure the publication will not compromise patent rights of the sponsor. 12

PUBLIC DOMAIN EXCLUSIONS “Publicly Available” (EAR) and “Public Domain” (ITAR) exclusions a pply to information and research results already published and publicly available from: § Libraries, bookstores, and newsstands; § Trade shows, meetings, seminars in the U. S. open to the public; § Published patent applications; § Websites accessible to the public ( some limitations such as illegally posted information); and, § Courses of a general nature listed in a university catalog. 13

EDUCATION EXCLUSION ITAR: no export controls on “general scientific, mathematical or engineering principles commonly taught in…universities” (but not including technology and materials). EAR: exclusion for “educational information” released by course instruction and associated teaching laboratories. 14

EMPLOYMENT EXCLUSION – ITAR ONLY A license is not needed to share information if the foreign national is: § A bona fide full-time employee of Harvard; § Not a national of an ITAR embargoed country (Belarus, Cuba, Iran, Libya, North Korea, Syria, Vietnam, Myanmar (Burma), China, Haiti, Liberia, Somalia, Sudan, Iraq, Afghanistan, Rwanda, D. R. Congo); § Has a permanent address in the U. S. while employed at Harvard; and § Is advised in writing not to share covered technical data with any other foreign nationals without government approval. 15

PENALTIES Faculty, staff and students may be held personally liable for export control violations. Real-examples in academia: § EAR: small fines generally, some sanctions to institutions § ITAR: J. Reece Roth case at University of Tennessee § Jail time § Fine § Currently under appeal 16

PENALTIES EAR Export Admin. Regulations / Commerce Department ITAR International Traffic in Arms Regulations / State Department OFAC Office of Foreign Assets Control / Treasury Department Civil • up to $12, 000 fine for each violation. • up to $500, 000 fine for • up to $120, 000 for each violation. involving controlled items for national security reasons. • the denial of export privileges, exclusion from practice, or seizure of goods. • a fine of up to $55, 000 for each violation. Criminal • willful violation: up to $250, 000 fine or • up to $1 million fine or • a fine of up to $1 million imprisonment for up to 10 years, or both. up to ten years in prison, for each violation or up • knowing violation: up to the greater of or both, for each to 20 years in prison, or $50, 000 fine or 5 X the value of the violation. both, for each violation. exports or imprisonment for up to 5 years, or both. 17

PART II: WORKING WITH CONTROLLED EQUIPMENT AND TECHNOLOGY Shipping Controlled Equipment outside the United States § Notify your school’s export control administrator as soon as possible if you are planning to ship an item abroad. § Under EAR, the necessity of a license is dependent on the facts: Where is the equipment being shipped? ; Do any exceptions apply? § Under ITAR, a license from the Department of State is required to ship controlled equipment to any foreign nation. This is a lengthy process. § Also, if it is unlawful to ship an item to a certain country without a license, it is also unlawful to hand-carry or pack the item in your luggage. 18

TEMPORARY EXPORTS Under an exception to the shipping license requirements, a researcher may be able to take laptops, cell phones and digital storage devices out of the country for use in fundamental research, provided the equipment remains under the control of the faculty researcher at all times. Temporary exports must be returned to the U. S. within one year. This exception does NOT apply to OFAC embargoed countries. Be sure to reference the Harvard Information Security Advisory for Travelers for additional information regarding the protection and security of your laptops or hand-held devices while traveling: http: //security. harvard. edu/files/it-securitynew/files/advisory_for_travelers_. pdf? m=1391722956 19

EQUIPMENT USE A license may be required for Foreign persons to use controlled equipment. ITAR and EAR prohibit assisting and training foreign nationals in the design, development, use, testing (etc. ) of controlled equipment without a license from Commerce or State. The use of controlled equipment in research may be covered by the Fundamental Research Exclusion or the Education Exclusion. 20

TECHNICAL INFORMATION Deemed Export: Releasing, furnishing, showing or disclosing export controlled technical information to a Foreign National, even in the U. S. , is “deemed” to be an export to the home country of the Foreign National. What technical information is controlled? § EAR: Development, production, operation, installation, maintenance, repair, overhaul AND refurbishing. § ITAR: Information required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance OR modification of defense articles. § Examples: blueprints, formulae, material specifications, operating manuals § How to turn on equipment - NO § How equipment operates - MAYBE I-129 and H 1 -B Visa Petitions require certification of compliance with deemed export restrictions. 21

ACCEPTING EXPORT CONTROLLED INFORMATION A Non-Disclosure Agreement is needed May be received by Harvard researcher if: § Harvard researcher is a U. S. citizen; § Information is ancillary to and not actually required for project; and § The right to publish remains unrestricted. 22

TECHNOLOGY CONTROL PLANS Technology Control Plan (“TCP”): describes the various safeguards an institution has taken to protect technology, without an export license, such as IT access controls, building access restrictions, “clean desk” and data discard procedures. § Required for a foreign person to access/use controlled equipment. § Also required for licensure under EAR and ITAR. 23

ELEMENTS OF A TCP Commitment: demonstrate University commitment to compliance with export controls. Physical Security Plan: access restrictions to areas where controlled equipment/technology is located. Information Security Plan: § IT access controls such as server folder access, firewall protection, passwords, etc. § Technical discussion controls § Guidelines on meetings, foreign travel, symposiums, etc. , where unlicensed controlled technology will be discussed. § Clean desk policy (central storage, locked desk). § Data discard policy (guidelines on appropriate methods of disposal for controlled data). 24

ELEMENTS OF A TCP (CONT’D) Personnel Screening Procedures: § Guidelines to vet faculty, staff, students, and contractors for possible export control issues. § Use Visual Compliance software to screen against Denied Persons List, Entity List (work/education affiliations) and Debarred Parties List. Training and Awareness Program: § Informing foreign national employees of any technology access limitations. § Training U. S. employees on any technology access limitations foreign national employees. Self-evaluation Program: § § Review schedule Audit module Audit report Corrective actions 25

PART III: TRADE SANCTIONS AND RESTRICTIONS Trade Sanctions: Prohibits transactions of value with countries or individuals that are subject to boycotts, trade sanctions and embargoes. § Countries: Under OFAC, the U. S. has broad sanctions against Cuba, Iran, North Korea, Syria, Sudan, and the Crimean Region of the Ukraine. § Specially Designated Nationals (SDN): The U. S. prohibits dealing with certain people and entities (not based on their nationality): § members of certain current/former governmental regimes § designated terrorists and terrorist groups § organizations narcotics traffickers § weapons proliferators § persons involved in the black-market diamond trade § a large number of vessels 26

TRADE SANCTIONS Sanctions prohibit the following: § Payments/providing anything of value to sanctioned countries, governments or SDNs: § Negotiating contracts; § Sending/receiving payments through sanctioned banks, or with SDNs; or § Importing/exporting goods or services from/to Sanctioned Countries. § Travel to sanctioned countries: § Receiving honoraria, or § Bringing equipment, smart phones, laptops to sanctioned countries (without a license unless a license exception applies) § Be sure to register your trip at: https: //www. globalsupport. harvard. edu/traveltools and consult with your School’s Export Controls Officer before travelling abroad. 27

ACTIVITIES SUBJECT TO TRADE SANCTIONS Travel (and transactions incident to travel) is generally permitted (except for remaining restrictions on travel to Cuba). Attendance at open conferences may be permitted, but all travel to sanctioned countries must be carefully reviewed. Government licenses may be granted in some cases, permitting otherwise prohibited activities, but can take 6 -12 months to process. Can affect University activities such as: § Working remotely from an embargoed country; § Engaging the services of a foreign person from a sanctioned country in support of research or University activities; § Receipt of payment from, or making payments to, a sanctioned foreign person; or, § Enrolling a barred foreign national in an on-line education course. 28

HOW DOES THIS APPLY TO HARVARD? Harvard University is host to researchers and students from around the globe, hires individuals, provides educational and other services broadly to U. S. citizens and foreign nationals alike, and is engaged in a spectrum of international activities, such as: – Enrolling foreign nationals in: • Professional or continuing education courses, • Executive education programs, or • Massive Open On-line Courses; – – Otherwise providing services to or receiving funds from foreign nationals; Purchasing equipment or services from a foreign corporation; Conducting research outside of the U. S; and Engaging in international research collaborations. ***Foreign Individuals and entities should be screened before engaging in these activities! 29

COMPLIANCE REQUIRES SCREENING When? § Screen at the beginning and end of the collaboration/enrollment/order/shipping process; § For purchase orders, ideally at quote stage, then at the time of shipment; § Be wary of “close matches. ” Investigate thoroughly. 30

SPECIALLY DESIGNATED NATIONALS (SDN) SCREENING How? § Contact your School’s Export Controls administrator. § Harvard has a University subscription to a screening compliance software called Visual Compliance. § Reference the University Guidance on SDN Screening. § If you need access to the Visual Compliance screening software, contact Melissa Lopes, melissa_lopes@harvard. edu in OVPR. 31

IF SCREEN RESULTS IN A POSITIVE MATCH Re-check the name to validate the accuracy of the match. In particular, determine whether: § The SDN entry is an exact match of first and last names. § The SDN entry matches any official identification documents of the individual, or any other information you have regarding the individual (DOB, POB, etc. ). 32

CORE CONCEPTS TO UNDERSTAND Export regulations cover only certain technologies, therefore, the great majority of research is not in the covered technology lists of the State or Commerce departments. Even if an item is in one of the lists of controlled technologies, there is generally an exclusion for fundamental research (note the need to ensure there are no restrictions on publications or foreign nationals). OFAC “trumps” EAR/ITAR in that travel to and other activities with embargoed countries and individuals/entities are prohibited even when exclusions/exemptions to EAR/ITAR apply. Licenses are needed not only for the shipment of tangible items but also for the research results themselves. “Export” does not necessarily mean out of the country; the concept of “deemed export” is critical. 33

CONTACTS When in doubt, consult with your school export control representativ e or OVPR!!! • FAS, SEAS and Wyss Institute: • Gearoid Griffin, Research Integrity Officer, gearoid_griffin@harvard. edu • HKS: • Matthew Alper, Associate Dean for Research Policy, matthew_alper@harvard. edu • HBS: • Toni Wegner, Managing Director, Research Administration and Intellectual Capital, twegner@hbs. edu • HMS: • Jeff Seo, Director of the Office of Research Compliance, export_control@hms. harvard. edu • SPH: • Eileen Nielsen, Director of Research Administration Education, enielsen@hsph. harvard. edu • OVPR: • Ara Tahmassian, University Chief Research Compliance Officer, ara_tahmassian@harvard. edu • Melissa Lopes, Senior Research Compliance Officer, melissa_lopes@harvard. edu 34